Devin v. Connecticut Mut. Life Ins. Co.

Opinion by RUMMONS. C. This action was commenced in the district court of Woods county by the Connecticut Mutual Life Insurance Company, a eorpóration, against Charley Devin, Marv Harliaugb, Laura B. Devin, and Kate A. Sniggs, to determine which of said defendants were the *193 rightful claimants to the proceeds of the policy of insurance issued by the Connecticut Mutual Life Insurance Company upon the life of Alexander N. Derm. This policy of insurance was issued August -1, 1876. On July 27, 1882. said Alexander N. Devin made indorsement upon said policy, assigning the same to his wife, Melissa A. Devin. Melissa A. Devin died in the year 1S91, leaving surviving ln>r her husband, Alexander N. Devin, and the plaintiffs in error, Charley Devin, Mary Harbaugh, and Kate A. Sniggs, her children, as her only heirs at law. Thereafter Alexander N. Devin married the defendant in error Lanra E. Devin, and on September 16, 1912, said Alexander N. Devin erased the name of Melissa A. Devin from the assignment written upon said policy and inserted therein the words “my wife.” Plaintiffs in error claim to be entitled to the proceeds. of the policy of insurance as the heirs of Melissa A. Devin. The defendant in error claims the proceeds of said policy by virtue of the assignment made on September 16, 1912. The plaintiffs in error by their pleadings and evidence put in issue the making by Alexander N. Devin of the alteration in the assignment. However, the evidence at tlie trial sufficiently supported the finding of the trial court that such alteration was made by Alexander N. Devin pr;or to his death. The only question we need consider in the determination of this case is the effect of the assignment made July 27, 1882, transferring said policy of insurance to Melissa A. Devin. The evidence offered by plaintiffs in error shows that this policy of insurance after the assignment was made was in the possession of Melissa A. Devin, aiu1 remained in her possession up to the time of her death, and that,' thereafter Alexander N. Devin took possession of it, together with the other effects of said Melissa A. Devin. The defendant in error offered no evidence to rebut this evidence of the plaintiffs in error' and from tlié evidence of the possession by Melissa A. Devin of this policy after the execution of the assignment by Alexander N. Devin, the delivery of the policy must be presumed. Farwell & Co. v. Cramer. 38 Neb. 62, 56 N. W. 710: Whiton, Administratrix, v. Snyder, 88 N. Y. 299: Peters v. Fowler, 41 Barb. (N. Y.) 467: McCarty v. Quimby, 12 Kan. 494. The effect of the execution and delivery liy Alexander N. Devin of the assignment of this policy of life insurance to Melissa A. Devin was to divest himself of all right, title, and interest therein and to vest in Melisa A, Devin a present interest in said policy of insurance of which she could only be divested by her own pet or that of her personal representative. Franklin Life Insurance Company v. Galligan, 71 Ark. 295, 73 S. W. 102, 100 Am. St. Rep. 73; Harrison’s Administrator v. North West Mutual Life Insurance Co., 78 Vt. 473, 63 Atl. 321, 112 Am. St. Rep. 932; Patterson v. Kicker, 72 Ala. 406; Jack v. Mutual Reserve Fund Life Ass’n. 113 Fed. 49, 51 C C. A. 36. Upon her death her interest in this policy of insurance passed to her heirs, and the record contains no evidence that said heirs ever consented to a transfer of said policy of insurance to the defendant in error Laura E. Devin. The record is silent as to the place of death of Melissa A. Devin, and it will be presumed that she died in Oklahoma, and that her estate descended in accordance with the laws of Oklahoma. Her surviving husband. Alexander N. Devin, was one of her heirs, and upon her death became vested with a one-third interest in all of the property of which she died seised. He therefore was vested with an interest as an heir of Melissa A. Devin in this policy of insurance, but, as such heir, he had no authority to chango the assignment theretofore made by him. The learned trial court, in determining this ease, seems only to have considered the question of whether or not the alteration in the assignment was made by Alexander N. Devin, and seems to have given no consideration to the effect of the original assignment made by him to Melissa A. Devin. We conclude that the attempted alteration in the assignment was of no effect to transfer title to the policy to the defendant in error Laura E. Devin, and that the plaintiffs in error, as heirs of Melissa A. Devin, inherited a two-thirds interest in said policy, and. as heirs of Alexander N. Devin, their coheir, inherited a two-thirds interest in the remaining one-third of said policy of insurance, thus giving them an e'ght-ninths interest in said policy. The defendant in error Laura E. Devin is an heir of Alexander N. Devin, and as such is entitled to recover a one-third of his interest in said policy of insurance as an heir of Melissa A. Devin, which would amount to a one-ninth interest in said policy. The. judgment of the. court below should he reversed, and the cause remanded, with directions to render judgment in accordance with (he conclusions reached in this opinion. By the Court: It is so ordered.